Getting Rid Of Fantasy Numbers In The Copyright Debates

from the one-hopes-we-can dept

James Boyle, law professor at Duke and also one of the pre-eminent scholars on copyright and public domain issues (seriously, if you haven't read his book on The Public Domain, you're missing out -- and it's available for free, of course), has written his latest column highlighting how much of the support for stronger copyright laws is based on fantasy numbers, and arguing that it's about time that these debates focused more on actual evidence. It's an argument that we've made often -- and Boyle (kindly) cites some of our posts to support his position. While many of the examples he uses we've covered before, it's a nice summary that's worth reading.

Reader Comments

RIAA & MPAA=MAFIAA

Both these organizations are criminal.They yell "Copyright Infringement" when the truth is that they and the industries that make them up,consistently work to shaft the artists involved When is a investigation gonna finally take place is not likely,as money talks,bulls**t walks.

It is a good piece and his points are well made. The key observation is that the true economic impact of the technology on society as a whole is much more complex than one might imagine. It should be observed that he is a professor of law, not economics, and he does not pretend to propose much that is substantive in the analysis of what is admittedly a more complex phenomenon. The paper he cites as an expert review of the economic and social impact may have been authored at HBS but it is (to say the least) shallow and is largely devoted to itemizing the many things we don't begin to understand.
The point that copyright exceptions are as important as rights is absolutely key and is indeed often ignored. But I couldn't help thinking, as I was reading, of what the benefits to the US economy and society are of the overwhelming majority of Microsoft software in China having been pirated? Perhaps the argument is that by saving this cash they can spend it on imports of other US goods? :)

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presumably you prefer something mindlessly one sided?

Perhaps on example of a weak argument would help? The writers argue that musicians will continue to produce music even if their work is pirated and their economic interests are thereby damaged because they are not rational economic actors. They just like to play and perform. This may well be true. But not many media companies will make $100m films just because they love making movies.

The argue that whilst record sales are down concert fees and other such secondary sources of revenue are up! And perhaps they outweigh the losses. No evidence either way - but they could! I seem to recall an article to the effect that the big performance winners are the big brand names who were established in the good old days paid for by record sales.

There are no simple answers here. But I salute the professor for shooting down b/s numbers.

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what the benefits to the US economy and society are of the overwhelming majority of Microsoft software in China having been pirated?

I'll let Bill Gates answer this one:

Although about 3 million computers get sold every year in China, but people don't pay for the software. Someday they will, though. As long as they are going to steal it, we want them to steal ours. They'll get sort of addicted, and then we'll somehow figure out how to collect sometime in the next decade.

- Town hall meeting at the University of Washington, as quoted in CNet

Itís easier for our software to compete with Linux when thereís piracy than when thereís not.

- "Piracy: Look for the Silver Lining" (The Economist, July 2008, p. 23)

And keep in mind that Microsoft (like Apple) was formed largely from "pirating" the ideas of others, e.g. Xerox:

Hey, Steve [Jobs], just because you broke into Xeroxís store before I did and took the TV doesnít mean I canít go in later and steal the stereo.

important numbers

Google. I've not heard one thing they've had to say regarding COICA. I know they have their own issues (turning into copyright cops recently) but why haven't they come out against this? Won't it interfere with their business model by an nth degree?

The industry has created a catch 22 situation for itself, of course. The figures they supply are over-inflated, easy to attack and clearly bogus. Yet, it's impossible to get truly accurate figures, and more realistic estimates don't look scary enough to lobby for the legal changes they so desperately crave. If only the people in charge could see through this so easily...

These so-called fantasy numbers spring from both sides of the aisle. The content providers state theirs (obviously higher than reality), and their opponents state theirs (basically "zero", which is obviously lower than reality).

It is troubling that all the discussions by those aligned against the content providers keep declaring, to the effect, "...and see, the GAO agrees with us!) This is a misreading of what the GAO actually said. What the GAO did say is that there is at the present time no way to determine what such a number would comprise other than to say that it obviously lies between the two extremes.

A final thought. In the "copyright debate" there is so much more at play than just the interests of the various "entertainment" industries. Overlooked in all of the rhetoric is the simple fact that copyright plays an important role in a host of industries, including, for example, product manufacturing. Add these to the debate and the dynamics would necessarily change.

Re: Re: hysterical

That is hysterical. So, prior to the Statute of Anne, all of human civilization was without creativity?

Given your thoughts (or trolling attempt) on this subject, I would suggest you follow Salinger's approach and find some backwoods estate on which you can horde your creativity and keep it away from the unwashed masses.

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"(basically "zero", which is obviously lower than reality)"

I don't think that is at all 'obviously lower than reality' unless you are only counting specific companies in the industry. The entertainment industry in general is a growing industry. They are making more money. It is quite possible that the net impact of piracy is zero, or maybe even a gain, but we don't know for sure.

However I don't care how much money these people are making. That is not the point of copyright. I care about the overall benefit to society and the access of society to it's cultural heritage. If (and that's a big if) we need special laws that grant special privileges to content creators in order for sufficient creative activity, those laws should be as minimal as possible. Copyright law today is a net loss to society and needs to be massively scaled back.

Who cares what the numbers are, except the creators of the content,

yes, and murder rates are down as well, im quite sure the number are exadurated, so lets reduce the laws on murder, to get those numbers right up where you want them to be.

what a joke, it does not matter at all, what the actual numbers are, it matters what the effect is, and what the percieved damage is...

If the entertainment industry THINK the problem is 'this' big, that is all that matters, they create the content, based on their ability to make a profit from that content...

IF THEY feel they cannot make a profit, they do not create the content..

so it does not matter what you think, or what I think, or really even what actually IS.. what matters is what the creators of the content think.. they are the ones who have to asses the risk of the proposed venture..

They are the ones actually doing the sums, and measuring the performance of their product, so it would make logical sense that they would be in the very best position to asses the damage done by externalaties like copyright law breaking..

Because in the real world, what the industry thinks, is the situation is a decision based on experience, and knowledge of working in that market. and what they think is all that matters, when it comes to the creation of new content.

Or new software, or new music or new songs, movies and so on.

Its basic economics, but again, we know economics is not one of Mikes strong suits.

so the choice is this:

either pay for content so more content will be created, or do not pay for content, steal the content that is allready available and dont expect much more new content,, so be content with the content you allready contain, as you will get less and less of any more !!

Let Gene take his ball and go home...

Fine. Let Gene take his ball and go home. That might not be such a bad thing in the end. He can take all of his crass little friends with him and they can leave the artistic industries to actual artists.

We should never be afraid of threats from content owners that they will "take their ball and go home". We should never cave into that sort of grandstanding and then make grave and sweeping technology policy decisions based on that fear.

If Big Content doesn't want to broadcast stuff in HD, let them deprive us. If Big Content is unwilling to release their stuff on VOD early, then so what?

Letting Studios lead the tech industry around by the nose is not an acceptable situation. When lumped in with everything else, Commercial Content is a minority player.

Re: Who cares what the numbers are, except the creators of the content,

So let's see if I can follow your logic here.

We care that content is being created in sufficient amounts. That is the purpose of copyright law (so far I'm with you).

The entertainment industry will indicate to us if the protections are sufficient by the amount of content created. (sure sounds good)

So to follow that we should look at how much content is being created. Hmm... As the internet has become mainstream and the piracy 'problem' grown we have seen more content created that ever before.

Therefor I must conclude that the industry is perfectly fine with the current situation in terms of protections being offered and we should not attempt to spend more effort than we currently do in this realm. We should monitor the creative output of entertainment and if there is significant drops we may want to adjust laws or enforcement. We should also monitor situations in which creativity is stifled by copyright laws and in the face of that look to loosen protections.

Benefits of piracy

>I wonder what the benefits to the US economy and society are of the overwhelming majority of Microsoft software in China having been pirated?

Well, if the Chinese hadn't been able to pirate Microsoft's operating system they would have developed their own by now, which would then have flooded the Western market. On the other hand, more competition in the operating system market would benefit the economy, so perhaps that argument isn't entirely rigorous...